In the closing days of its session, the New York State Legislature has passed sweeping changes to New York’s employment discrimination and harassment law. Major amendments to the state’s Human Rights Law significantly lower the standard under which employers may be found liable for workplace harassment, and also reduce employers’ available defenses in such cases.

The amendments effectively create a lower threshold for establishing liability against employers in workplace discrimination or harassment cases. While the amendments were passed against the backdrop of the Legislature’s focus on sexual harassment in the workplace, the amended law will apply to all forms of workplace harassment cases. Governor Cuomo is expected to sign the amendments shortly.

The legislative action comes as a late-session surprise to many employers. The bill amending the law was introduced in the Legislature on June 16, 2019 and approved by the Senate and Assembly in the final days of this year’s legislative session.

End of “Severe and/or Pervasive” Standard

Historically, both state and federal employment discrimination laws have required discriminatory harassment in the workplace to be “severe and/or pervasive” in order for it to constitute unlawful harassment. “Severe or pervasive” conduct is conduct that alters the conditions of employment and creates a hostile or abusive work environment.

In connection with that standard, courts across the nation and in New York State analyzed whether workplace conduct had the "purpose or effect" of "substantially interfering" with the plaintiff's employment or whether it created an "intimidating, hostile, or offensive" environment. Courts determined this by looking at whether the harassment was "severe"—meaning sufficiently egregious—or "pervasive"—meaning that it occurred with sufficient frequency.

While behavior that does not rise to the “severe or pervasive” level is generally prohibited by employers—and typically results in an employee being counseled, disciplined, or even terminated—it was not deemed to be behavior that would provide an employee with legal grounds to sue the employer. The #metoo and #timesup movements, however, prompted the Legislature to take action. While the Legislature was initially spurred to action by stories of sexual harassment, the amended law applies to all forms of unlawful discriminatory harassment, such as harassment based on race, age, or national origin.

New Standard for Establishing Workplace Harassment

Under the amended law, workplace harassment claims under the Human Rights Law can be brought “regardless of whether such harassment would be considered severe or pervasive.” The amendment further redefines “harassment” as “an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment.”

The amendment provides one affirmative defense for employers facing a discrimination claim. Employers may defeat a claim of discrimination if it can show “the harassing conduct does not rise above the level of what a reasonable victim of discrimination…would consider petty slights or trivial inconveniences.” That defense mirrors employers’ defenses under the New York CityHuman Rights Law. It remains to be seen, however, what the courts or the New York State Division of Human Rights will deem “petty slights or trivial inconveniences.”

Moreover, the changed law functionally eliminates the “Faragher-Ellerth” defense in harassment cases brought under the Human Rights Law. The “Farragher-Ellerth” defense, named after two U.S. Supreme Court decisions from the 1990s, established employers’ affirmative defenses in harassment lawsuits. In those cases, the Supreme Court essentially ruled that when a supervisor or manager’s sexual harassment culminates in a tangible employment action, such as dismissal or an undesirable reassignment, the employer is automatically liable.

However, when no tangible employment action is taken or when co-worker harassment is at issue, the employer could defeat liability if showed: (1) that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and that (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, such a complaint reporting mechanism. This defense has been vital for employers with robust, well-maintained anti-harassment policies and complaint-reporting mechanisms.

The changed law, however, significantly weakens that defense by stating that employees do not have to follow their employer’s policies for complaining about harassment. The text of the bill explicitly provides that an employer can still be held liable for claims of harassment even if the “individual did not make a complaint about the harassment” to their employer.

Other Amendments

The bill contains several other employment discrimination amendments, which include an extended deadline for victims of workplace sexual harassment to file complaints with the Division of Human Rights. Employees alleging sexual harassment will now have three years to file an administrative complaint after suffering sexual harassment, rather than one. The bill also expands a prohibition on nondisclosure agreements for settlements of any workplace harassment lawsuit. This prohibition on nondisclosure agreements was first passed last year and applied only to sexual harassment cases; under the amended law, the ban on nondisclosure agreements will apply to all harassment cases.

To-Do

The new harassment standard will go into effect 60 days after the Governor signs it into law. Perhaps more than ever, employers in New York must remain extremely vigilant in preventing harassment in the workplace. Employers should have thorough anti-harassment training, reporting procedures, and investigation procedures in place. Human resources professionals in both large and small employers should immediately review their organization’s EEO training and related policies. Employers should clearly communicate to employees that unwelcome harassing conduct—whether unlawful or not—will not be tolerated. Investment into the internal EEO function will be critical given this expansion of employment discrimination liability.